United States: Practice Tip: The Attorney-Client Privilege And Former Employees

Originally appeared in Legal Journal Newsletters on October 1, 2015

Undoubtedly, the attorney-client privilege is integral to every attorney's practice, regardless of whether that attorney's practice focuses on litigation, regulatory or transactional work. Yet, despite the ubiquitous nature of the attorney-client privilege, attorneys generally understand far less about the nuances of the invocation of the attorney-client privilege than they should, particularly in the context of interacting with former employees of a corporate client. In the face of seemingly endless regulatory and compliance investigations, along with protracted product liability, antitrust, securities and other corporate litigations, the need to communicate with and prepare former employees for any kind of testimony is ever-increasing. As this need increases, so, too, does the practicing attorney's need for a solid and accurate understanding of when and precisely how the attorney-client privilege applies in the context of interactions with former employees. This article provides a refresher on the parameters of the attorney-client privilege and briefly discusses relevant case law addressing the application of the attorney-client privilege to interactions with former employees. It then sets forth the implications of misunderstanding the attorney-client privilege and presents guidelines to follow when dealing with former employees.

The Attorney-Client Privilege and Corporations in General

The attorney-client privilege protects communications: 1) between a client and his or her attorney; 2) that are intended to be, and in fact were, kept confidential; 3) for the purpose of obtaining or providing legal advice. United States v. Mejia, 655 F.3d 126, 132 (2d Cir. 2011); see also Fisher v. United States, 425 U.S. 391, 403 (1976). The purpose of this privilege is, of course, to encourage clients to make full disclosure to their attorneys. Fisher, 425 U.S. at 403.

In Upjohn Co. v. United States, 449 U.S. 383 (1981) the Supreme Court held that the attorney-client privilege applies to a corporation's attorney's communications with corporate employees: 1) when a communication is made to the corporation's counsel that is acting in their capacity as counsel (and not as business consultants, for example); 2) at the direction of corporate management for the purpose of securing legal advice from counsel; 3) concerning a subject within the scope of employment; and 4) when the employee knows that the purpose of the communication is for the corporation to procure legal advice. Upjohn at 394-95.

The Attorney-Client Privilege and Former Employees

In Upjohn, the Supreme Court did not fully outline how the attorney-client privilege applies to communications with former employees. In his concurrence, Chief Justice Burger offered his opinion that "a communication is privileged when, as here, an employee or former employee speaks at the direction of the management with an attorney regarding conduct or proposed conduct within the scope of employment." Upjohn Co ., 449 U.S at 403 (Burger, C.J., concurring). Nevertheless, the Upjohn decision did not specifically address whether communications between a corporate counsel and former employees are, in fact, privileged.

Courts have varied in their application of the Upjohn criteria to former employees. In Peralta v. Cendant Corp., the court was asked "whether, under federal law, counsel for an employer can claim a privilege as to its attorney's communications in preparing an unrepresented former employee for deposition by opposing counsel, and/or such attorney's communications during the deposition about her testimony in that deposition." Peralta v. Cendant Corp., 190 F.R.D. 38, 40 (D. Conn. 1999). The Peralta court concluded that: 1) privileged information obtained by a former employee while employed by the corporation; and 2) communications between the former employee and corporation's counsel for the purpose of educating counsel about relevant facts known to the former employee are privileged.

However, communications that go beyond the scope of the know- ledge which the former employee acquired during the course of employment, even between a former employee and counsel at a deposition preparation session, may not garner the protections of the attorney-client privilege. Id . at 41. Therefore, the attorney-client privilege would not apply to information given y corporate counsel to a former employee regarding the testimony of other witnesses, or to discussions between the former employee and corporate counsel on how to answer questions.

The Peralta decision also noted that some communications between a former employee and the corporation's counsel may also be protected under the work-product doctrine. Recall that the work-product doctrine announced in Hickman v. Taylor will act to shield communications with former employees to the extent that such communications included the "mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation." Hickman v. Taylor, 329 U.S. 495 (1947). As a result, communications which take place in preparation for a deposition, for example, will be shielded from disclosure under the work-product doctrine if those communications involved legal opinions or conclusions that would reveal a party's legal strategy. The Peralta court explained that because the work-product doctrine aims to prevent disclosure to opposing counsel, not to the entire world, disclosure to third parties does not always waive work-product immunity. Consequently, in Peralta, the former employee was not directed to answer questions that would reveal corporate counsel's conclusions or opinions involving their strategy. Id. at 42. However, it is important to note that, generally, work-product protections do not prevent disclosure of underlying facts and may therefore limit what information is shielded from disclosure. See, e.g., Bowne of New York City, Inc. v. AmBase Corp., 150 F.R.D. 465, 471 (S.D.N.Y.1993).

The Peralta decision has been widely cited to determine when a former employee's conversations with the former employer's counsel can be withheld as privileged. See, e.g., Winthrop Res. Corp. v. Commscope, Inc. of N. Carolina, No. 5:11-CV-172, 2014 WL 5810457, at *3 (W.D.N.C. Nov. 7, 2014); Price, 2008 WL 2388709, at *1; Wade Williams Distribution, Inc. v. Am. Broad. Companies, Inc. No. 00 CIV. 5002 (LMM), 2004 WL 1487702, at *1 (S.D.N.Y. June 30, 2004). For example, in U.S. ex rel. Hunt v. Merck-Medco Managed Care, LLC , a Pennsylvania District Court was asked to determine the admissibility of four types of statements: 1) Statements made by a corporation's counsel to a former employee regarding the nature of the case; 2) Statements made by a former employee to her former employer's counsel regarding her conversations with plaintiff; 3) Descriptions and/or summaries of witness testimony provided to a former employee by her former employer's counsel; and 4) Conversations between a corporation's counsel and a former employee while she was under oath during the deposition. 340 F. Supp. 2d 554, (E.D. Pa. 2004).

Citing Peralta, the court stated that, "the line to be drawn is not difficult: if the communication sought to be elicited relates to [a former employee's] conduct or knowledge during her employment ... , or if it concerns conversations with corporate counsel that occurred during her employment, the communication is privileged; if not, the attorney-client privilege does not apply." Id. at 558. The court allowed the former employee to be questioned about the four topics at issue in a manner consistent with the limitations set forth in Peralta.

Yet, the Peralta holding has not been universally accepted. For example, in Infosystems, Inc. v. Ceridian Corp., a Michigan district court stated that Peralta "sweeps too broadly" regarding the former employee's activities or knowledge acquired during their employment. 197 F.R.D. 303, 304-305 (E.D. Mich. 2000). In Upjohn, and in Chief Justice Burger's concurrence, the invocation of the privilege was based partially on the fact that the employee (or in the case of Burger's comments, the former employee) spoke at the direction of management. The Infosystems court's criticism stems from Peralta's apparent omission of this factor. Consequently, the court in Infosystems, declined to apply Peralta's holding broadly and noted that "counsel's communications with a former employee of the client corporation generally should be treated no differently from communications with any other third-party fact witness." Id. at 306.

Notwithstanding this conclusion, the Infosystems court did acknowledge that there are exceptions to this rule, such as "where the former employee retains a present connection or agency relationship with the corporation, or where the present-day communication concerns a confidential matter that was uniquely within the know- ledge of the former employee when he worked for the client corporation, such that counsel's communications with this former employee must be cloaked with the privilege in order for meaningful fact-gathering to occur." Id.

However, more recently, the District Court of Connecticut refused to revisit the Peralta holding in light of Infosystems, citing the number of recent Second Circuit decisions that continued to follow Peralta. Weber v. FUJIFILM Med. Sys., U.S.A., No. 3:10 CV 401 JBA, 2011 WL 3163597, at *7 (D. Conn. July 27, 2011).

Drawing the Line Between Privileged and Discoverable Communications

Apart from understanding the scope and function of the attorney-client privilege, as well as the existing legal precedent, attorneys should be mindful of the pitfalls that accompany blanket assumptions that their communications will be considered privileged. Assuming that communications with former employees will be shielded from disclosure is likely to result in less stringent practices to the detriment of the client. It inevitably means that less scrutinizing attorneys are more likely to fail to conform their supposedly privileged communications to the parameters courts have outlined, thereby subjecting matters intended as privileged communications to discovery. Instead, to ensure that the attorney-client privilege will cover their communications, attorneys should endeavor to follow the guidelines below.

Provide former employees with an adequate Upjohn warning. Upjohn warnings are instructions given to employees (regardless of whether they are current or former employees) at the outset of communications with the company's counsel where the employee is told that: 1) the attorney represents the company and not the employee individually; 2) the attorney-client privilege belongs to the company, not the employee; 3) the company reserves the right to waive the privilege and disclose the substance of the interview to third parties; and 4) the employee should not waive that privilege by disclosing — either inadvertently or intentionally — the content of the communications to third parties. Former employees need to be clear about the attorney's objective in speaking with them, which should be obtaining information that the former employee possesses as a result of their employment, and that the attorney represents the corporation, and not the former employee.

Understand the extent of the former employees' knowledge, activities and responsibilities, and the timing of their tenure at the corporation. If application of the attorney-client privilege to these communications with the former employee is ever questioned, the attorney must be able to provide a sufficient explanation of how the former employee's knowledge is critical information that the attorney needs to adequately represent the corporation.

Limit discussions with former employees to matters that were within the scope of the former employee's tenure at the corporation. Legal precedent demonstrates that there may be room for debate regarding whether the scope of the attorney-client privilege will encompass all discussions and fact-gathering that attorneys may engage in with a former employee in preparation for any kind of testimony, if those efforts are not focused on the proper, protected subject matter. Attorneys can take refuge in the attorney-client privilege, however, if they ensure that communications with former employees remain within the realm of subject matters that courts have clearly outlined as protected by the privilege.

Avoid scripting witnesses either verbally or with writings. Here, again, legal precedent demonstrates that the prudent course of action is to avoid communications of any kind that are not clearly within the protected realm of the attorney-client privilege. Given that some courts have adopted the view that former employees are indistinguishable from third parties with no interests in the outcome of a corporate client's litigation, a court could determine that an attorney has waived the attorney-client privilege through attempts to influence the witnesses' testimony with scripting. It is far more practical to avoid having to defend such communications in the first instance, rather than having to devise legal maneuvers to fit communications within the scope of the privilege after the communications have been challenged as discoverable.

Do not share work-product, litigation strategy or testimony from other witnesses with the former employee. This practice point also focuses on embracing a conservative approach to even presumably privileged communications. If work-product, litigation strategy and other witnesses' testimony are not shared with the former employee, the attorney forecloses the possibility of inadvertent disclosure should a court conclude that any aspect of such matters is not reasonably related to the scope of employment.


Overall, attorneys should think actively and intentionally about the attorney-client privilege and its application to their practice. With each of the above practice points in mind, attorneys can predictably and successfully draw a clear line between privileged and discoverable communications.

Read the Legal Journal Newsletters article here (subscription required). 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.